Arthur Conan Doyle Estate Sued To Show That Sherlock Holmes Is Public Domain

from the go-get-'em dept

A little over three years ago, we had a discussion concerning whether or not Sherlock Holmes was in the public domain. By our understanding of the law, the character absolutely is in the public domain. There is one remaining book -- The Case-Book of Sherlock Holmes -- which contains a few stories that are still covered by copyright, but the characters and most of the written works are in the public domain. However, the legal representatives of the Sir Arthur Conan Doyle Estate use the fact that one book is still held under copyright to argue that the character is still protected until (at least) 2023. Of course, as with things like Happy Birthday, even if it should be in the public domain, if there's some corporate entity insisting that it's covered by copyright, you'd have to go to court to prove otherwise. And most people don't want to bother.

Thankfully, that just changed when it comes to Sherlock Holmes. Sherlock Holmes scholar, Leslie S. Klinger, was working on a book (with Laurie R. King) called In the Company of Sherlock Holmes, detailing "major mystery/sci-fi/fantasy authors inspired by the Holmes tales." However, the Conan Doyle Estate contacted their publisher, Pegasus Books, demanding a license fee, and saying if they weren't paid, they'd make sure that no major distributors would sell the book. Specifically, the estate directly threatened that:

If you proceed instead to bring out Study in Sherlock II unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Like too many publishers, Pegasus freaked out and refused to publish the book at all, so Klinger has taken it upon himself to file for declaratory judgment. You can see the full filing posted here (and embedded it below).

The lawsuit points out that Sherlock Holmes characters have long been in the public domain, and even that remaining book of stories includes two that are clearly in the public domain, as they were published prior to 1923. But, most importantly "none of the Sherlock Holmes Story Elements first appeared in any of the stories that were collected in The Case-Book of Sherlock Holmes." In other words, the entirety of copyright protected elements in the character were published outside of that one book, and are now in the public domain.

The lawsuit also notes that Klinger and King's publisher on an earlier book, A Study in Sherlock, did, in fact, pay a license to the estate, but they did not concede any of the legal arguments. When the estate threatened Klinger, he correctly explained that no license was needed, but he's still dealing with the fallout from his publisher getting cold feet. Thus, he's asking the court to state, definitively, that the character is in the public domain. Kudos to Klinger for taking this on. We need more people willing to stand up for the public domain. Also, jeers to Pegasus for not being the one to take this on and for freaking out over the bogus threat.

Why is the estate bothering considering that Doyle eventually killed off Holmes, then only brought him back after massive public outcry to a writing standard that has never had the same level as prior to Holmes' death?

Surprise Witness

Re:

Because the whole "Holmes" meme has been popular in recent years.
These "living dead" parasites want to suck as much unearned money as possible from modern day creators. Even if it involves killing off those who try to reject the parasite.

This lawsuit is actually wrong

If we take into account that there is at least one country (Mexico) where the copyright of the Sherlock Holmes' series as a whole is still standing until at least 2031 (100 years after the death of the author, Sir Arthur Conan Doyle), then the defense of Doyle's estate can allege that Klinger and King are infringing in at least one country, which will grant them 8 more years than the estate claims!

(1) This is exactly why characters alone should be outside the scope of copyright. Imagine if someone wrote a sequel to Harry Potter way off when books 1-6 are in the public domain but 7 is not. The author would be allowed to use Harry but couldn't make any reference to Harry's defeat of Voldemort at the end.

(2) To the extent that authors want to create an official canon and prevent knock off sequels that confuse readers, trademark law is sufficient to do this.

(3) Correct me if I'm wrong, but isn't this book non-fiction? There's no infringement because the Holmes character is not actually being used as a character.

(4) Even if this non-fiction book would otherwise infringe, how is this not fair use?

Re:

"(1) This is exactly why characters alone should be outside the scope of copyright. Imagine if someone wrote a sequel to Harry Potter way off when books 1-6 are in the public domain but 7 is not. The author would be allowed to use Harry but couldn't make any reference to Harry's defeat of Voldemort at the end."

Well this scenario won't happen, since all 7 books will become public domain at the same time, 70 years after JK Rowling dies (at least in the UK and US, as well as a good number of other countries). It's only the archaic old US copyright laws that created terms of 95 years from publication that are causing the weird scenario with Sherlock Holmes, and other works published 1923-1977.

Copyright........forever

So under this legal theory, what is to stop an Author (or his estate) producing a new short story every 20 years and resetting the Copyright clock again and again? That is the logical outcome if this legal argument prevails isn't it?

Copyright........forever

So under this legal theory, what is to stop an Author (or his estate) producing a new short story every 20 years and resetting the Copyright clock again and again? That is the logical outcome if this legal argument prevails isn't it?

Re: Copyright........forever

An interesting discrepancy from Doyle's own interests.

One example of Doyle's attitude about Holmes can be seen in his correspondence with the American stage actor William Gillette, who wrote an immensely popular play about Holmes and asked permission to have Holmes get married in the drama.

"Doyle sent him a telegram back that said: 'You may marry him or murder him or do whatever you like with him,'" said Stashower.

Reasoning about copyright.

More and more lately, I am seeing that you cannot really reason about copyright from any thing like "first principles" and get anywhere near the answer that a person versed in copyright law will get given the same set up.

Copyright is a hodge podge of who knows what seemingly produced to satisfy the wishes of those with enough money or influence to get that they wanted pushed through at the time.

It's a good thing we have such lengthy copyrights or no one would ever write _any_ books! I mean, who would want to write about some random public domain character? When's the last time you saw a story based on Ulysses, or Merlin, or Cinderella?

Re: Gender confusion?

Re: This lawsuit is actually wrong

"...one country (Mexico) where the copyright of the Sherlock Holmes' series as a whole is still standing until at least 2031..."
Which is why you don't see any Sherlock Holmes projects published/filmed in Mexico.
The key is where the project is created/officially-distributed.
If it's created and sold in a country where the source material is PD, then the project can't be sued (at least with any hope of success).
(Secondary sales in countries where the copyright for th source material still holds aren't the responsiblity of the project creator.)
Of course, a company can be sued as a form of harassment/blackmail, and some companies will pay a small fee to avoid long legal proceedings.

Re:

"When's the last time you saw a story based on Ulysses, or Merlin, or Cinderella?"

Merlin tv series currently running on BBC and SyFy.
Plus numerous movies/tv series/novels/graphic novels about King Arthur, all of which feature Merlin.Cinderella...(not including Disney-based material)
"The Ballet" (2010)
"Ice Show" (2008)Once Upon a Time TV series (2011-present) incorporates Cinderalla with other fairy tales
"Into the Woods" (incorporates original Fairy Tale) (international tour)Ella Enchanted (2004)Shrek movie series. Cinderella is one of many fairy tale characters including Merlin!Fables ongoing comic book series and spin-off mini-series

Re: Re:

Re: Copyright........forever

Which is why this case must succeed. Right now, older works are often stuck in legal limbo because copyright holders use the quagmire that the law has become to make claims over works that otherwise should be in the public domain. These kinds of cases rarely come up, as few are willing to take on these estates in court, and those that do usually end up in settlements so the estates can avoid setting legal precedents.

If the estate wins, then copyright holders can effectively keep characters under copyright forever by simply creating a new work ever few decades.

If Klinger wins, then any character in public domain works also becomes public domain, even when the character appears in other work that are not.

Re: Re:

I'm sorry. I expected the pundits to get upset with my sarcasm, I certainly didn't think that statement would be taken as serious. I still have trouble accepting that people actually do think like that. Particularly people in positions of power. Scary stuff that.

Re: Re: Surprise Witness

Re: Re: Re:

Sadly, there are people who think this way--that "true" creations are snowflakes, unique from everything that came before and with nothing taken from anything else. Of course, when you do call them out for plagiarism, they claim that's totally acceptable for "creators" or "professionals", not the commoners--those who don't have an army of lawyers from their publisher who are paid to cover their asses.

Secondary Boycott.

If you proceed instead to bring out Study in Sherlock II unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

The most insidious of these comments is this threat/promise of as secondary boycott. Chilling to see business has descended so low.

Re:

A Study in Sherlock is a collection of short stories featuring alternate takes on Sherlock Holmes, or inspired by the character. It's one of those books where the editor gets a bunch of published authors together and says "hey, I want to compile a book of short stories about 'blah' Want to contribute one?"

Since the post refers to it as Study in Sherlock II once, and it's the same author, I assume it's more of the same.

Re: Surprise Witness

That's what people don't understand. We need copyrights for dead artists because when we need to contact them we need to hire expensive shamans (!?) to contact the spiritual world and hear from the artists themselves what are their wishes.

And if you think about it, I agree with Chris Dodd. We should think of the poor shamans that are employed by Hollywood!

What is the point of copyright lasting after an authors death? I wish that our copyright law was the 1790 copyright law. It was much more reasonable and limited. Copyright law restrict the creativity of this generation. A lot of ideas have alreadly been used. There are so many things copyrighted. I wish people would try and get them less strict instead of letting big corporations and rich people decide copyright laws. Copyright law can make criminals out of otherwise law abiding citizens.Copyright law criminalizes acts that are not immoral in themself. I thought Sherlock Holmes was so old it was public domain. I think people should be allowed to write stories using characters from books and movies. Derivative works should not be an exclusive right to authors.

Re:

Well some people make the not unreasonable argument that an author has a right to be able to leave something to his descendants. If he'd been a landlord, he'd leave the buildings he owns and the descendants would make money from them, by continuing to let them or selling them. If a farmer, likewise.
It is sort of fair, until you remember that while spouses might, descendants don't get to keep getting a policeman's pension, descendants of surgeons don't continue to get paid for their parents or grandparents surgery. Perhaps instead of trying to explain why authors shouldn't be able to have a heritable estate of their ip, we should start wondering why actual property is treated differently and whether it should stay that way or not.

Re: This lawsuit is actually wrong

The complaint for declaratory judgment may be wrong for some reason--we'll know once the court decides--but it isn't wrong for the reason you suggest.

If you look at the document, it's clear that it's seeking a declaration regarding copyright within the United States only. (It could hardly do otherwise, since the court has no jurisdiction in Mexico or any other non-U.S. territory.)

If the term of copyright is different in Mexico, that's certainly interesting, but it doesn't affect this case.